039-NLR-NLR-V-34-VALLIPURAM-v.-MANIKAM-et-al.pdf
AKBAR J.—Vallipuram V. Manikam.
137
1931Present: Akbar J.
VALLIPURAM v. MANIKAM et al
97—C. R. Point Pedro, 24,792.
Execution—Conveyance of property subject to right of repurchase—Grantor'sright under conveyance—Liability to seizure—Civil Procedure Code,s. 218 (k).
Where a conveyance of property was subject to the condition that thevendor was.entitled to repurchase the property upon payment of a certainsum within a specified time,—
Held, the vendor’s right was liable to seizure in execution and thatit did not fall within the exception created by section 218 (fc) of theCivil Procedure Code.
A
PPEAL from a judgment of the Commissioner of Requests, PointPedro.
Tisseveresinghe, for plaintiff, appellant.
Navaratnam, for second defendant, respondent.
November 20, 1931. Akbar J.—
This is an action under section 247 of the Civil Procedure Code. The ,plaintiff-appellant as judgment-creditor of the first defendant-respondentobtained a decree against him in Court of Requests, Point Pedro,No. 24,215, on March 27, 1930. In this action the plaintiff seeks to setaside deed No. 21,554 dated June 5, 1930, whereby the first respondentrenounced in favour of his sister, the second defendant-respondent, inconsideration of a sum of Rs. 250 (which consideration was not paid inthe presence of the notary) his right to obtain in terms of deed No. 1,937dated April 10, 1929, a reconveyance of the land which the first defendantsold on that deed to the second defendant for a sum of Rs. 250 which waspaid in the presence of the notary. Four issues were framed in thiscase, namely: — (1) Is the accrual of first defendant’s right to get aretransfer contingent on payment of money?'(2) Is the said right
personal? (3) Was consideration paid? and (4) Was the deed of renuncia-tion (No. 21,554 of June 5, 1930) obtained in fraud of creditors or toconsolidate second defendant’s property?
138
AKBAR J.—Vallipuram v. Manikam.
No evidence was led and the learned Commissioner decided the caseon the first issue, namely, that the right created by deed No. 1,937 ofApril 10, 1929 (marked 2 D1 and hereinafter referred to as such) wasa contingent right and therefore was not liable to seizure under section218 (fc) of the Civil Procedure Code. A very long argument was raisedby counsel on both sides in this appeal but it is not, however* necessary
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for me to refer to all the points of law urged by counsel, because in myopinion the interest created by 2 D1 in favour of the first defendantdid not fall under paragraph (Jc) of section 218 of the Civil ProcedureCode. The deed 2 D1 is signed by the first defendant as well as thesecond defendant. It purports to be a conveyance in consideration ofRs. 250 by the first defendant in favour of his sister, the second defendant,of a certain property, subject to a certain condition. The condition isthus stated: “ I do hereby declare that this property belongs to me byvirtue of deed of transfer in my favour No. 6,155 dated July 3, 1924,and attested by Kana Supramaniam Notary and by possession, thatwhen I ever within the term of three years from the date hereof pay thesaid consideration of rupees two hundred and fifty with interest thereonat the rate of sixteen per cent, per annum, then she shall have toexecute a legal transfer deed in my -favour and if I fail to pay the saidprincipal and interest within the said three years and get a deed executedin my favour, then this deed should, from the day after the expirationof the said three years, be considered as a deed without any bindingsthat I will deliver this day the possession of the said land unto her and,that the said deed has been delivered herewith.
“ I, the said Rasammah, do hereby declare that I have purchased thesaid land subject to the said bindings, with consent of my husband thesaid Kanapathipillai Vallipuram ”.
It is clear that the parties valued this option to purchase at Rs. 250as evidenced by the later deed 21,554 of June 5, 1930. Paragraph (fc)of section 218 states that “ An expectancy of succession by survivorshipor other merely contingent or possible right of interest” is not liable toseizure. I think paragraph (Jc) refers to a right which is not yet vestedin the judgment-debtor and which, may never vest. But in this caseby deed 2 D1 there is a definite contract whereby the second defendantagreed to retransfer the property on payment of a certain specified sum.I do not think it can be urged that under 2 D1 no right had accrued tothe first defendant to repurchase this property. Under that deedsecond defendant bound herself to reconvey the property upon paymentof a specified sum within three years, and that this is a valuable rightis proved by the action of the – second defendant-respondent – herselfwhen she purported to buy back this option by the later deed for the sumof Rs. 250. The learned Commissioner’s, reasons therefore seem to meto be wrong and the case should be sent back for a retrial. Moreover,1 am of opinion that this right to repurchase was not personal to the firstdefendant but passed to his heirs and his assignees and that-it could beseized by his creditors. I therefore answer both the issues (1) and (2) inthe negative and send the case back for trial on the issues Nos. (3) and (4)
DRIEBERG J.—Bartlett v. Rengasamy.139
and a further issue No. (5) which will be as follows:—Did the plaintiffseize the interest of the first defendant in deed No. 1,937 dated April 10.1929, in the manner required by law?
The judgment and decree are set aside and the case sent back for trialon issues (3), (4), and (5). The appellant will be entitled to the costs ofthis appeal but the costs hitherto incurred in the lower Court will abidethe result of the further trial.
Set aside.